Right to the Gut

The modern approach to property is to see property as a “bundle of sticks”, abandoning the 17th Century notions (the ones that today are touted as the basis for libertarianism) as largely foolishness. This jurisprudential analysis bore fruit in the discussion by Hohfeld of jural correlatives over a century ago.1 2 Philosophically, this echos the development of the social sciences, and the recognition that Homo sapiens is closer to termites3 than one might expect, lol. In other words, we are tribal and symbiotic, and may very well be largely a function of what our group and our gut mandate.

Practically speaking, we are intersections of complex matrices (a high tech verbalization of “bundle of sticks”). There is no such thing as ownership; there is on;y these complex relationships. To say that Locke’s idea that we own ourselves is not to say that someone else owns us, but to say the very notion of ownership is something on;y a child might entertain.

Even with this realization, as Justice Johnson notes 4, the forces that drive our jurisprudence still try to focus on only one side of the balance, as it were, and the judicial appointments of culture warriors hearten such ideological forays. As Johnson puts it, “Professor Hohfeld brought legal jurisprudence a long way by giving courts the analytical tools to understand property as a set of interdependent relations that involved both rights and obligations. That work evolved into the bundle of rights, but there has been much more emphasis on the rights, and less on the obligations. Any new theory of property rights has to emphasize broader obligations, as well as rights, if we are to confront the fairness question.”

When we hear people like Mia Love preach possessive Narcissism, when we see mobs rallying to “I built it”, we are seeing the ignorant response to the demagogues call to shed the mantle of responsibilities that all members of any society wear. Indeed, in one of many inconsistent moments Locke actually makes it clear that while individuals should have the right to elect membership in a polity, once the election has been made, the individual is caught and held fast by the tyranny of the majority (and taxes are not theft, rofl).

In sum, we are perhaps better defined by our obligations than by our “rights”. As potlatch societies recognize, status is maintained by what is given, not by what is taken. One’s position in any society is dependent on the myriad relations one manages with all the other persons and things one lives among. Hubris, at its core, is the belief that the individual is wholly responsible for their own destiny, and has been the subject of scorn for millennia. It is our great challenge that we face its resurgence today.

  1. Hohfeld, Wesley Newcomb.“Some Fundamental Legal Conceptions as Applied in Judicial Reasoning.” The Yale Law Journal 23, no. 1 (November 1, 1913): 16–59. https://doi.org/10.2307/785533.
  2. Hohfeld, Wesley Newcomb. “Fundamental Legal Conceptions as Applied in Judicial Reasoning.” The Yale Law Journal 26, no. 8 (June 1, 1917): 710–70. https://doi.org/10.2307/786270.
  3. Margonelli, Lisa. Underbug: An Obsessive Tale of Termites and Technology. 2018. https://www.overdrive.com/search?q=FE2063C4-FB27-42FD-8591-2E47E58B8176.
  4. Johnson, Denise R. “Reflections on the Bundle of Rights.” Vermont Law Review 32 (n.d.): 26. https://lawreview.vermontlaw.edu/wp-content/uploads/2012/02/johnson2.pdf.

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